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April 21, 2009

Google Book Settlement, orphan works, and foreign works

Much of the emerging criticism of the Google Book Settlement is focusing on the fate of "orphan works" in it. Pamela Samuelson in her forthcoming ACM article on the settlement notes that "the settlement would, in effect, give Google the exclusive right to commercially exploit millions of orphan books." The Internet Archive's request to be a defendant in the suit states that the proposed settlement "effectively limits the liability for the identified uses of orphan works of one party alone, Google Inc." James Grimmelmann notes that "Google’s extraordinary market power under the settlement will come from its unique lock on orphan works." But by focusing on orphan works, these critics downplay the impact on the real losers in the settlement: the thousands of foreign authors whose books can be exploited with impunity by Google and the Books Rights Registry.

A common assumption among the critics of the settlement is that there are two classes of rights holders. The first are those who come forward and register with the Registry - what were called "active rightsholders" at the Columbia conference on the settlement.

The other class of rights holders are those who fail to opt-out of the settlement and also fail to register with the Registry. The existence of these rightsholders is therefore unknown to either Google or the Registry. It would be a mistake, however, to equate in-copyright but out-of-print works owned by these non-active rights holders with orphans.

Orphan works are those works whose copyright owner cannot be located, either because the current owner cannot be identified or cannot be found. There are many books that would be included in the Google settlement that are true orphans. There are many more, however, whose copyright owners are eminently locatable - but who aren't participating in the settlement.

The largest group of non-active rights holders are likely to be foreign authors. In spite of Google's efforts to publicize the settlement abroad, I suspect that most foreign rights owners of out-of-print books will fail to register with the Registry. There are a couple of reasons for this. For one, they may not know that their book is still protected by copyright in the US. In addition, they may assume that international network of reproduction rights organizations would manage their royalties, and not understand the need to register separately.

The scope of the foreign land grab could be considerable. Some initial estimates suggest that 7 million books could be included in the settlement. Of these it is estimated that 1 million are in the public domain. That would leave 6 milllion in-copyright but out-of-print books. Early efforts to try to understand the nature of the library collections that were being used to build the Google books database suggested that 50% of the works in the libraries were not in English, so it would be safe to say that at least 3 million of the books in the settlement will be foreign works. (Since Google added many European partners after this study was done, the number is likely to be much higher.) Some of these are going to be orphan works - but many more are going to have easily locatable rights holders that have chosen not to be active participants in the settlement. Their royalties are destined for the pockets of the Registry. I am willing to bet that a goodly percentage of the operating expenses of the Registry will come not from orphan works, but rather from foreign authors who do not understand the need to participate in the settlement.

Pamela Samuelson has questioned the representativeness of the defendants in the settlement. If there is an injustice being done in the settlement, it is with foreign authors.

Comments

Krzysztof, as you note, there are four crucial things to keep in mind about the Google Book Settlement as it relates to foreign works:

1. Copyright term is determined by US law, not Polish law. That means that there are probably books that are in the public domain in Poland that are still protected by copyright in the US - and therefore their owners could register with Google to receive payments. I agree that most Polish authors are probably not aware of the conditions of US copyright law. As far as copyright term is concerned, only US law matters.

2. Polish copyright law is still important since it would determine who would own the copyright in a work. Most Polish works in the US are probably protected by the copyrights restored to them in 1998. These rights were restored to "the author or initial rightholder of the work as determined by the law of the source country of the work." That means that there are probably authors in Poland who may have signed away all of their Polish copyrights - but they would be the ones who could register the American copyrights with the Registry.

3. As for the territorial issues, I am convinced that Google is going to use IP restrictions to limit access to the books to US territories. Otherwise Google would be open to a law suit in France or Poland. Many have pointed out how easy it is, however, to use proxy servers to avoid this sort of restriction.

4. Your question on whether Google will take into account commercial availability through foreign bookdealers is an excellent one. "Commercial availability" is defined in the Settlement Agreement as being "through one or more then-customary channels of trade in the United States (emphasis added). That would mean that Google could include any current Polish book in its database so long as that title was not available through an American distributor.

All 4 reasons just re-emphasize my contention that non-US authors are the big losers in the Settlement.

I am IP lawyer from Poland. I am the head of IP practice in LSW law firm.

It is quite disappointing that foreign books – the same as orphans - have been used only s a vehicle to settle without paying any real attention to them.

For foreign authors and publisher the main problem is to explain to them how the settlement applies to their books. The authors of the settlement want the settlement to apply to books all over the world but they have not put any effort in explaining the idea of „American copyright / American interest/. Of course it may be done by lawyers from each jurisdiction, however it would be better to put in details in the settlement, instead of providing the readers with simple reference to USC. (For example – as far as Poland and Polish books are concerned – 16th of February 1927 is crucial).

Secondly, it should be expressly stated what does it mean “use on the territory of the US”. Especially having in mind the argumentation of Google’s lawyers in SAIF case in France. Will Google use “IP number” limitation? As for today Google is far from saying “yes”.

Thirdly, the idea of “commercial availability” should take into account also foreign perspective. What does it mean to be available for consumers on the territory of the US? What is the difference in offering books on amazon.com and on foreign sites eg. empik.com or [polish publisher].pl

It seems to me that the authors of the settlement want it to cover all foreign books without however showing any respect to any alternative copyright systems and foreign interests.

You are right that the greatest harm from the settlement may prove to be in Europe, particularly given the role of Europeans in writing so many of the scholarly texts that Google has been scanning in university libraries. And European writers seem to be waking up to that fact.

I know. I'm one of the seven authors (or their representatives) who successful petitioned the court for a much-needed, four-month delay in the settlement. That role put me in touch with a feisty group of German writers who've managed to get their government to begin to take a hard look at what the settlement actually means. I've been placing the links to the articles that they send me on a webpage:

http://inklingbooks.com/googlesettlement/googlesettlement.html

You're also right when you note that the settlement applies equally to all those who've published books in the some 160 countries with which the U.S. has copyright treaties. Our treaty obligations require just that.

I was reading one of those treaties today, the Berne Convention. It clearly prohibits any member country from treating foreign authors any differently from their own. Those who wrote the treaty no doubt assumed that countries would treat their own authors the best. Little did they know that a country might strip their own authors of their copyright for merely being hard to find. And when a country does that, the same practices must apply to foreign authors, who are from Google's perspective even harder to find.

In its FAQ, Google conceals this little bit of nastiness by referring to a foreign author's "U.S. copyright interest." It's not his "interest," whatever that means, that's being taken. It's his U.S. copyright, automatically received as a result of those treaties.

But since those same treaties also demand that the copyright of authors be protected for a minimum of life plus 50 years (in the case of Berne), those treaties are in direct conflict with this settlement, which strips those rights away without any effort to discover if or when the author died.

If this settlement is approved, look for trouble to develop between the U.S. and most of the world's other countries. Countries that already resent our cultural dominance, will have reason to resent what looks to them (and me) like cultural theft.